HKSAR v. Lui Sai Yu

Press Summary (English)

Press Summary (Chinese)

CACC 61/2022, [2023] HKCA 611

On appeal from [2022] HKDC 384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 61 OF 2022

(ON APPEAL FROM DCCC NO 401 OF 2021)

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Before: Hon Poon CJHC, Pang JA and Anthea Pang JA in Court

Date of Written Submissions: 27 February, 13 and 20 March 2023

Date of Judgment: 27 April 2023

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J U D G M E N T

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The Court:

1.This is an application by the applicant, taken out of time, for a certificate that three points of law of great and general importance are involved in the judgment of this Court in [2023] 1 HKLRD 751 under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.[1] The respondent does not oppose the application despite the delay, having regard to the clear significance of the issues involved, but suggests that the three points could be re-formulated as two to better identify the issues for the CFA’s determination. The parties agree that the application be disposed of on paper without an oral hearing. This is our judgment.

2.We accept that the delay of less than one month in taking out the application, which was occasioned by the time for taking instructions from the applicant after the discharge of his legal aid, is short and excusable. We further accept that since this is the very first appeal on the proper construction of the sentencing regime established under article 21 and article 33 of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”), the proposed points of law self-evidently engage issues of great and general importance that merit the CFA’s determination.

3.Having regard to what we have decided in our judgment and the parties’ submissions, we will state the points of law as follows:

(1)  What is the proper construction of the sentencing provision in NSL 21 for offences of a serious nature, namely, “if the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed term imprisonment of not less than five years but not more than ten years”, and in particular, whether the stipulation of “not less than five years’ fixed term imprisonment” is mandatory?

(2)  What is the proper construction of NSL 33(1) in sentencing offences to which the provision applies and, in particular, whether the three conditions specified therein are exhaustive in that if none of them is established, the penalty for an NSL 21 offence which is of a serious nature cannot be reduced to less than five years’ fixed term imprisonment; or it is permissible to so reduce the sentence for such an offence on account of other mitigating factors?

4.We will grant a certificate on the above questions under section 32(2).

Mr Joe Chan, instructed by O Tse & Co., for the applicant

Mr Anthony Chau, DDPP and Mr Ivan Cheung, ADPP (Ag), of the Department of Justice, for the respondent